Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


February 19, 1998



Before Farrell, King, and Ruiz, Associate Judges.

The opinion of the court was delivered by: Farrell, Associate Judge:

Appellant Marian A. Cox filed a motion under Super. Ct. Dom. Rel. R. 60(b) (1997) to amend her divorce decree in order to secure for herself a share of certain pension rights owned by her former husband. She moved separately to enforce and modify the provision of her marital separation agreement relating to child support. The trial court denied both motions, the former on the grounds that it was untimely under Rule 60(b)(1) and that Mrs. Cox had not shown extraordinary circumstances sufficient to warrant relief under Rule 60(b)(6). Regarding the latter, the court ruled that it lacked "authority to change a Separation Agreement or any other kind of agreement." We sustain the trial court's order on the Rule 60(b) motion, but vacate and remand for further proceedings on the motion to enforce and modify child support.


Mr. and Mrs. Cox were married on August 12, 1978, and have three children from the marriage. The parties separated on November 24, 1990, and on May 14, 1993, executed a Voluntary Separation and Property Settlement Agreement (the "Separation Agreement"), which was intended to resolve all matters relating to the marriage. They appeared pro se before Commissioner Thomas J. Gaye who, on June 28, 1993, signed a decree granting the judgment for absolute divorce. *fn1 The decree stated that there were "no property rights to be adjudicated" and did not by its terms incorporate, merge, or ratify the Separation Agreement.

Paragraph 8 of the Separation Agreement provided that "Husband presently has pension plan benefits/rights through his employment with the United States Navy. Both parties agree [that] Wife shall exercise her right, title, and interest in military retirement pay or pension rights of Husband as provided by military regulations." The Separation Agreement did not state the specific percentage or dollar amount Mrs. Cox would receive through the pension benefits. Instead it stated that the pension would be divided in accordance with those military regulations.

At some point thereafter, Mrs. Cox apparently applied to the military to receive her share of Mr. Cox's pension benefits, but was informed that she could not collect the benefits because her divorce decree lacked a specific percentage or dollar amount by which the pension was to be divided. Although the military regulations referenced in the Separation Agreement allow for direct payment to a former spouse of up to 50% of pension benefits, this authorization is conditional in that the divorce decree, or a court-approved property settlement incident to the decree, must "specifically provide[] for the payment of an amount, expressed in dollars or as a percentage of disposable retired pay, from the disposable retired pay of a member to the spouse or former spouse of that member." 10 U.S.C. § 1408(a)(2)(C), (e)(1) (1997); 32 C.F.R. 63.3(e), 63.6(a)(1), 63.6(c)(8), 63.6(e)(1) (1997).

On August 1, 1994, Mrs. Cox filed a motion in Superior Court under Super. Ct. Dom. Rel. R. 60(b), asking the court to amend the divorce decree to reflect what she said was the parties' intent, namely for her to receive 30% of Mr. Cox's pension benefits. The trial court denied the motion after a hearing.


In essence, Mrs. Cox's motion to amend the divorce decree asserted that the parties had mistakenly failed to specify in the decree what portion of Mr. Cox's retirement benefits she would receive. *fn2 On appeal, Mrs. Cox argues first that her motion should have [707 A2d Page 1299]

been granted under Rule 60(b)(1), which provides relief from a final judgment based on "mistake, inadvertence, surprise, or excusable neglect." She recognizes, however, that a Rule 60(b)(1) motion by its terms must be made "not more than 1 year after the judgment . . . was entered or taken," and that her motion to amend was filed thirteen months after the entry of the divorce decree. To recapture the extra month, Mrs. Cox attempts to rely on D.C. Code § 16-920 (1997), which postpones the "effective" date of a divorce decree "until the time for noting an appeal shall have expired," i.e., thirty days after final judgment. See D.C.App. R. 4(a)(1). *fn3 Plainly, however, the "effective" date under § 16-920 cannot be the same as the date that triggers its computation, which is the date judgment was entered. Moreover, the two dates serve distinct purposes: the former preserves the status quo ante pending appeal; the latter — as the starting point for Rule 60(b)(1)'s clock — preserves the finality of trial court judgments that are not appealed. Mrs. Cox's endeavor to escape the one-year limitation thus fails.

Mrs. Cox further argues that the trial court should have amended the divorce decree under Rule 60(b)(6), which permits action by the court for "any other reason justifying relief from the operation of the judgment." We are sympathetic to this argument in light of her seemingly plain entitlement under the Separation Agreement to some percentage of her spouse's military pension. *fn4 But we cannot ignore the limitations on Rule 60(b)(6) relief.

It is well settled that the more lenient provisions of Rule 60(b)(6) may not be used to nullify the specific time limitations of Rule 60(b)(1) nor can 60(b)(6) include any of the grounds for relief provided elsewhere in Rule 60(b). In short, subparts (b)(1) and (b)(6) are mutually exclusive.

Household Finance Corp. v. Frye, 445 A.2d 991, 992 (D.C. 1982) (citations and internal quotation marks omitted). The Coxes' failure to specify a percentage of pension benefits in the divorce decree can only reasonably be described as "mistake" or "excusable neglect," i.e., unawareness of ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.